cafeconleche
Registered Users (C)
Bunch of punks.
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N-400 denied - seemingly due to USCIS miscalculating time out of the country - input welcomed
- Thread starter seattleite909
- Start date
seattleite909
Registered Users (C)
@jackolantern
I'm happy if they did a de novo examination of the whole case, to be honest. For my particular circumstances I did nothing which constituted a statutory break in continuous residence and I don't see how they could prove that I broke this considering the significant evidence I have, and the reasons for my significant travels (which I'm not going to go into here) and the fact that given no statutory break the burden is on them to prove it's broken rather than vice versa. So I'm not to worried about that. I'm entitled to this benefit under the law- it's not for them to try to deny on petty reasons without evidence. It's just highly irritating that there is this doubt on how they calculate (which may be resolved on Friday). If this is more than a mistake I just wish they had published clearer guidance as in that case I would not have taken a 1 month trip I did last year to avoid exactly this issue!
I'm happy if they did a de novo examination of the whole case, to be honest. For my particular circumstances I did nothing which constituted a statutory break in continuous residence and I don't see how they could prove that I broke this considering the significant evidence I have, and the reasons for my significant travels (which I'm not going to go into here) and the fact that given no statutory break the burden is on them to prove it's broken rather than vice versa. So I'm not to worried about that. I'm entitled to this benefit under the law- it's not for them to try to deny on petty reasons without evidence. It's just highly irritating that there is this doubt on how they calculate (which may be resolved on Friday). If this is more than a mistake I just wish they had published clearer guidance as in that case I would not have taken a 1 month trip I did last year to avoid exactly this issue!
What's written in the guide as instructions can't be used as rule of law. It still leaves open the question of whether it applies to both exit and entry dates.The guidance in the USCIS publication states that days spent partially in the US count as full days. That's pretty explicit.
Unfair advantage means that if you consider the example of leaving the US for just over 24 hours it would (incorrectly) count as zero time outside the country (using your calculation method). Extrapolate this for multiple trips and it means you basically get a "free day" for every trip. Consequently, these "free days" quickly add up if you have many trips (36 "free days" in your case).I don't really understand the comment above that I would have an "unfair advantage".
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Jackolantern
Registered Users (C)
What's written in the guide as instructions can't be used as rule of law. It still leaves open the question of whether it applies to both exit and entry dates.
However, in the absence of a specific law or precedent that binds the interpretation one way or the other, it's likely the court will hold them to the rule they published in the guide.
seattleite909
Registered Users (C)
What's written in the guide as instructions can't be used as rule of law. It still leaves open the question of whether it applies to both exit and entry dates.
Unfair advantage means that if you consider the example of leaving the US for just over 24 hours it would (incorrectly) count as zero time outside the country (using your calculation method). Extrapolate this for multiple trips and it means you basically get a "free day" for every trip. Consequently, these "free days" quickly add up if you have many trips (36 "free days" in your case).
I'm aware of the fact that the brochure text can't be directly interpreted as law, which was why I posted in the forum in the first place - to see if anyone had any examples of precedent or case law or similar factual examples.
I don't follow your logic with 'unfair' advantage. Unfair to who? It could be perfectly reasonable to say that 'day' in the context of 'days out' means periods of at least 24 hours in the context of a day - which could explain why partial days count as full days in the US. I.e. if you spent <24 hours in a 24 hour period out of the country then you were counted as being in.
If they had given guidance that there was a threshold to determine whether you were considered in our out on a particular day (i.e. 12 hours) then that's a different story.
In any event out of all my trips, the only ones which are just over 24 hours total about 3 trips (short hops over the border to BC) and wouldn't be meaningful here.
I don't think it is unfair advantage. The law should be applied, and if the law states that over 24 hours on two days should not be counted, then be it. its not fairness its following instructions which they are not making clear. I hope you will get straight forward clarification Friday.
I hope it does not get to legal courts etc. hopefully things will be cleared up at info-pass. The sad truth is that reapplying consumes much less energy, time, resources than a legal battle, which makes them get away with it
I hope it does not get to legal courts etc. hopefully things will be cleared up at info-pass. The sad truth is that reapplying consumes much less energy, time, resources than a legal battle, which makes them get away with it
cafeconleche
Registered Users (C)
I was thinking about the Guide to Naturalization, and it is a little ridiculous that they don't mention the exact method to count dates, or to consider continuous residency. It should be laid out in black and white, and it's unfair of CIS to nail you on something like this because of their own built-in vagueness in the Guide. If continuous residence is subjective they should say so, and I think the reason why it's so vague is so that they can deny applications.
Could this be an issue to complain about?
Could this be an issue to complain about?
sanjoseaug20
Registered Users (C)
Multiple issues here ...
#1. If a denial letter has been issued, talking to an IO will only help clarify the calculations. I do not think they are going to withdraw their decision without going through whatever their appeal process is.
#2. I do not think an appeal is going to result in a "de novo" examination unless there was evidence of negligence on part of the original IO, or there was a serious mistake. The difference because of the travel days does not cut it in my eyes, but I am not a lawyer. If the borderline calculations are indeed borderline, I do not think the CIS is going to turn on each other. That's just how it is.
However, you might be helping CIS create a precedent which they can use next time.
#3. You never talked about how your interview went. You also do not want to talk about other aspects (continuous residence) of the case. Depending on the tone, you would know whether there is more ammunition in CIS's armor. If there is, apply afresh. If this is the only issue, go ahead and appeal.
But on the whole I agree with you. If CIS asks you not to count travel days, they should adhere to that. Whether it is an easy to win battle with an informal appeal is a difficult question.
#1. If a denial letter has been issued, talking to an IO will only help clarify the calculations. I do not think they are going to withdraw their decision without going through whatever their appeal process is.
#2. I do not think an appeal is going to result in a "de novo" examination unless there was evidence of negligence on part of the original IO, or there was a serious mistake. The difference because of the travel days does not cut it in my eyes, but I am not a lawyer. If the borderline calculations are indeed borderline, I do not think the CIS is going to turn on each other. That's just how it is.
However, you might be helping CIS create a precedent which they can use next time.
#3. You never talked about how your interview went. You also do not want to talk about other aspects (continuous residence) of the case. Depending on the tone, you would know whether there is more ammunition in CIS's armor. If there is, apply afresh. If this is the only issue, go ahead and appeal.
But on the whole I agree with you. If CIS asks you not to count travel days, they should adhere to that. Whether it is an easy to win battle with an informal appeal is a difficult question.
Based on what? Have you come across any examples of this?However, in the absence of a specific law or precedent that binds the interpretation one way or the other, it's likely the court will hold them to the rule they published in the guide.
Unfair in the sense that any trip over 24 hours results in a free day according to your calculation method. I used the example of trips of just over 24 hours as an example of where the free day comes into play, and applied this to longer trips as well via extrapolation.I don't follow your logic with 'unfair' advantage. Unfair to who? It could be perfectly reasonable to say that 'day' in the context of 'days out' means periods of at least 24 hours in the context of a day - which could explain why partial days count as full days in the US. I.e. if you spent <24 hours in a 24 hour period out of the country then you were counted as being in.
In any event out of all my trips, the only ones which are just over 24 hours total about 3 trips (short hops over the border to BC) and wouldn't be meaningful here.
Your trips of just over 24 hours aren't the issue. I used the example of trips just over 24 hours to prove the point that they would (incorrectly) give you a free day by counting both exit and entry dates, and then extrapolated this logic to longer trips to show that you are getting a extra day for each trip.
On a similar note, the guide says that you must have accumulated 30 months of physical presence in the US. An applicant can easily conclude that since USCIS generally considers 1 month to equal 30 days, it must mean that 30 months in the US equals 900 days, which is a false conclusion.
cafeconleche
Registered Users (C)
"On a similar note, the guide says that you must have accumulated 30 months of physical presence in the US. An applicant can easily conclude that since USCIS generally considers 1 month to equal 30 days, it must mean that 30 months in the US equals 900 days, which is a false conclusion."
Exactly! For something as serious as immigration law, this is way too vague.
Exactly! For something as serious as immigration law, this is way too vague.
Jackolantern
Registered Users (C)
Based on what? Have you come across any examples of this?
In cases where there is an ambiguity that isn't resolved by an overriding force such as a statute/regulation/precedent/legal definition of words, the courts tend to rule in a way that is consistent with the relevant government agency's own published guidance and/or operating procedures.
I don't have those cases on my fingertips right now, but I've read a number of cases like that -- at least one dealing with the IRS and one of the publications they issue, and another with a USCIS or INS memo or instruction.
Remember we're not talking about a memo or application instruction overriding a law. This is only about cases where the law is unclear or silent on a particular issue, and the ambiguity or silence is still open for interpretation after consulting the law and precedents etc.
In this case, if there is no overriding law/precedent/etc. forcing the counting of physical presence to be done a certain way, the courts almost surely will hold USCIS to the interpretation they've published regarding counting partial days as full days in the US, unless they can show that their actual operating procedure is consistently done otherwise.
Jackolantern
Registered Users (C)
"On a similar note, the guide says that you must have accumulated 30 months of physical presence in the US. An applicant can easily conclude that since USCIS generally considers 1 month to equal 30 days, it must mean that 30 months in the US equals 900 days, which is a false conclusion."
Exactly! For something as serious as immigration law, this is way too vague.
However, in this case the vagueness is resolved by the underlying law which says the applicant must have been physically present in the US for at least half of the statutory period (albeit not completely resolved in all borderline cases, e.g. somebody with 913 days where there were 2 leap years in the 5 year period).
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Does anyone know what the USCIS Adjudicator's Field Manual says about counting days of physical presence?
I don't know if it is a problem with my computer or if the AFM is currently unavailable, but the link to it at the USCIS cite does not seem to be working at the moment....
http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm
I don't know if it is a problem with my computer or if the AFM is currently unavailable, but the link to it at the USCIS cite does not seem to be working at the moment....
http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm
In this case, if there is no overriding law/precedent/etc. forcing the counting of physical presence to be done a certain way, the courts almost surely will hold USCIS to the interpretation they've published regarding counting partial days as full days in the US, unless they can show that their actual operating procedure is consistently done otherwise.
One can easily argue that the law allows the IO to use their discretionary powers to determine the physical presence calculation by only allowing exit date to count as full day in US.
Jackolantern
Registered Users (C)
#2. I do not think an appeal is going to result in a "de novo" examination unless there was evidence of negligence on part of the original IO, or there was a serious mistake.
In this case I disagree. Remember the first appeal is an administrative one controlled by USCIS. They don't like to overturn their own decisions, and they hate to be taken to court and overruled by the court. Here is a case where a de novo examination would allow them to maintain the denial, and also strengthen* the denial against a court challenge by changing the denial reason from physical presence to continuous residence, so I would expect them to use de novo to their advantage.
*if they examine de novo and switch the denial reason from physical presence to continuous residence, it comes down to a matter of discretion, and courts are generally unwilling (and sometimes legally unable) to overrule discretionary decisions of government agencies. In this case with around 900 days outside the US, it's probably not hard to find a stretch of trips that enables them to point to a break in continuous residence, unless the OP has something solid like N-470 to protect continuous residence.
Jackolantern
Registered Users (C)
One can easily argue that the law allows the IO to use their discretionary powers to determine the physical presence calculation by only allowing exit date to count as full day in US.
That is not open to discretion. It's a calculation they must consistently follow one way or another. USCIS may have the authority to choose which way it's counted, but that would be an agency-wide interpretation to be followed by all IO's who adjudicate naturalization, not something left to individual IO's discretion.
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Does anyone know what the USCIS Adjudicator's Field Manual says about counting days of physical presence?
I don't know if it is a problem with my computer or if the AFM is currently unavailable, but the link to it at the USCIS cite does not seem to be working at the moment....
http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm
Here's what the AFM says about determining physical presence:
In general, the same documentation and evidentiary considerations discussed in the chapter on Continuity of Residence apply in the evaluation of physical presence. Once all the available evidence has been gathered, the determination as to whether the physical presence requirement has been met is a relatively simple matter of mathematical computation. (See Chapter 73.3(c) of this field manual on documenting continuity.)
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22854.html
Mathematical calculation could easily be interpreted as (entry date - exit date) by an IO.
My bet is that IOs follow what is in the law and their AFM, not what the naturalization guide says.
That is not open to discretion. It's a calculation they must consistently follow one way or another. USCIS may have the authority to choose which way it's counted, but that would be an agency-wide interpretation to be followed by all IO's who adjudicate naturalization, not something left to individual IO's discretion.
Well in the OP's case it certainly appears to have been left to the discretion of the IO to calculate physical presence. The case was adjudicated and denied on that fact. Whether it was done correctly or according to what USCIS intended is another question.
cafeconleche
Registered Users (C)
And that is why the Naturalization Guide has to reflect the same rules followed by IOs. It's ridiculous to let people walk into a trap when it comes to borderline cases.